Annotated Lecture Transcript

Since this series is focused on U.S. intelligence law as it
applies to operations affecting United States persons, later courses on
constitutional law focus primarily on the rights of individuals contained in
the Amendments.

ØThe 6 Amendments Relevant to U.S. Intelligence Law: As for
the second important part of the Constitution—the 27 Amendments—only 6 of those
Amendments are relevant to U.S. intelligence law in any practical way; and only
3 of those are critically important:

ØThe Bill of Rights: The first 10 Amendments to the U.S.
Constitution are known collectively as “The Bill of Rights.”

oThe Bill of
Rights limits the government’s use of the constitutional powers given to it
in Articles I’ve just mentioned.

oIt does through
10 Amendments that modify the powers granted in the Articles to recognize
certain fundamental rights possessed by individuals that cannot be violated by
any branch of the government.[7]

oOf the first 10
Amendments that make up the Bill of Rights, only 3 have major
application in the intelligence law context.

oThe 6th
Amendment contains trial rights that are relevant to certain aspects of
criminal trial that might be relevant in instances where intelligence
activities are connected to criminal prosecutions. [11]

§For example, the 6th Amendment’s Confrontation Clause
might limit the extent to which a defendant in a criminal trial can be excluded
from proceedings on national security grounds.[12]

§There’s also a case called Marzook, where a defendant challenged
allowing Israeli ISA agents to use pseudonyms and dress in “light disguise”
while testifying against him at his criminal trial.[13]

·The judge in Marzook found that the 6th Amendment’s
Confrontation Clause wasn’t violated by letting the agents testify under false
names because the defendant presumably didn’t know their real names when they
were interacting with him as undercover, so letting them do the same in court
would not prejudice the defendant’s ability to confront his accusers.[14]

·The judge did however rule that the agents could not testify in
“light disguise” because that would make it impossible for the defendant to be
able to know who they were to be able to rebut their accusations, which in turn
created a 6th Amendment Confrontation Clause problem.[15]

·The judge ordered the courtroom closed and forbade anyone present
from describing or disclosing the identities of the Israeli ISA agents.[16]

§But most intelligence activities do not result in criminal
trials, so the 6th Amendment is only of limited importance in most
day-to-day intelligence law situations.

oThe 8th
Amendment’s ban on cruel or unusual punishment is also tangentially relevant
because it prevents torture in intelligence interrogations.[17]

§But most intelligence activities are carried out remotely or in
secret, and do not involve direct contact with the targeted American in any way
that might trigger 8th Amendment considerations.

§That’s why I say the 6th Amendment and 8th
Amendment are relevant to U.S. intelligence law, but not critically important.

ØThe Fourteenth Amendment: The Fourteenth Amendment:
Besides the first 10 Amendments that make up the Bill of Rights, the 14th
Amendment is also somewhat important because it applies the federal Bill of
Rights to the states.[18]

oBefore the 14th
Amendment, you might have had a 4th Amendment right to protect you
against unreasonable searches and seizures by the federal government, but that
didn’t protect you from unreasonable searches by state officials.

§The 14th Amendment’s Due Process Clause was used to
remove this ridiculous technicality and incorporate most of the protections
found in the federal Bill of Rights so that they now apply to local and state
governments.

§I don’t list the 14th Amendment as one of the 3 most
critical Amendments to U.S. intelligence law only because the 14th
Amendment is critical primarily to state-level operations.

§Remember that this course is focused on federal-level
intelligence operations.

oThere is an
important aspect of the 14th Amendment that concerns the Equal
Protection Clause.

§The Due Process Clause of the 5th Amendment applies to
the federal government, but contains no Equal Protection Clause.

§The Due Process Clause of the 14th Amendment applies
to the state governments and does contain an Equal Protection Clause.

§Courts have used the Due Process Clause of the 5th
Amendment to reverse incorporate the 14th Amendment’s Equal
Protection Clause so that it applies to the federal government.[19]

§Just like how the courts used the Due Process Clause of the 14th
Amendment to incorporate most of the protections in the Bill of Rights to apply
to the state governments.

ØThe 3 Amendments that are Critically Important to U.S.
Intelligence Law: So really, the 3 most important Amendments we’re going to
be studying are:

So there are 3 Articles and 3 Amendments that are critically
important to U.S. Intelligence Law.

I’ll tell you more about each one in just a second.

Footnotes

[1]U.S. Const. amend. I (“Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a redress of
grievances.”).

[2]U.S. Const. amend. IV (“The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.”).

[3]U.S. Const. amend. V (“No person shall be held to answer for
a capital, or otherwise infamous crime, unless on a presentment or indictment
of a grand jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public danger; nor shall any
person be subject for the same offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use, without just
compensation.”) (emphasis added).

[4]U.S. Const. amend. VI (“In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for his defence.”).

[6]U.S. Const. amend. XIV
(“All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the
laws.

Representatives shall be
apportioned among the several States according to their respective numbers,
counting the whole number of persons in each State, excluding Indians not
taxed. But when the right to vote at any election for the choice of electors
for President and Vice-President of the United States, Representatives in
Congress, the Executive and Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such State,
being twenty-one years of age, and citizens of the United States, or in any way
abridged, except for participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the proportion which the number of
such male citizens shall bear to the whole number of male citizens twenty-one
years of age in such State.

No person shall be a Senator
or Representative in Congress, or elector of President and Vice-President, or
hold any office, civil or military, under the United States, or under any
State, who, having previously taken an oath, as a member of Congress, or as an
officer of the United States, or as a member of any State legislature, or as an
executive or judicial officer of any State, to support the Constitution of the
United States, shall have engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies thereof. But Congress may by a
vote of two-thirds of each House, remove such disability.

The validity of the public
debt of the United States, authorized by law, including debts incurred for
payment of pensions and bounties for services in suppressing insurrection or
rebellion, shall not be questioned. But neither the United States nor any State
shall assume or pay any debt or obligation incurred in aid of insurrection or
rebellion against the United States, or any claim for the loss or emancipation
of any slave; but all such debts, obligations and claims shall be held illegal
and void.

The Congress shall have the power to enforce, by
appropriate legislation, the provisions of this article.”).

[7]SeeEncyclopedia Britannica, Constitution
of the United States of America (Student and Home Edition 2009).

[8]U.S. Const. amend. I (“Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a redress of
grievances.”).

[9]U.S. Const. amend. IV (“The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.”).

[10]U.S. Const. amend. V (“No person shall be held to answer for
a capital, or otherwise infamous crime, unless on a presentment or indictment
of a grand jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public danger; nor shall any
person be subject for the same offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use, without just
compensation.”) (emphasis added).

[11]U.S. Const. amend. VI (“In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for his defence.”).

[12]SeeEdward C. Liu, Congressional Research Serv.,
The State Secrets Privilege: Limits on Litigation Involving Classified
Information (2009), available athttps://intelligencelaw.com/files/pdf/law_library/crs/R40603_5-28-2009.pdf
(“The use of secret evidence at trial also implicates constitutional concerns.
As described above, there may be instances where disclosure of classified
information to the defendant would be damaging to the national security. In
these instances, the prosecution may seek to present evidence at trial in a
manner that does not result in disclosure to the defendant. One proposed
scenario might be the physical exclusion of the defendant from those portions
of the trial, while allowing the defendant’s counsel to remain present. [See
Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 168 (D.D.C. 2004) (describing potential
procedures under military commissions established by Presidential order)]
However, such proceedings could be viewed as unconstitutionally infringing upon
the defendant’s Sixth Amendment right to confrontation.[ See Hamdan v.
Rumsfeld, 548 U.S. 557, 634 (2006) (Stevens, J., plurality opinion) (stating
that “an accused must, absent disruptive conduct or consent, be present for his
trial and must be privy to the evidence against him”)] Historically, defendants
have had the right to be present during the presentation of evidence against
them, and to participate in their defense. [See, e.g., id.; Crawford, 541 U.S.
at 49, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“It is a rule of the common law,
founded on natural justice, that no man shall be prejudiced by evidence which
he had not the liberty to cross examine”) (internal citations omitted)] But
other courts have approved of procedures which do not go so far as to require
the defendant’s physical presence. In United States v. Abu Ali, the
Fourth Circuit permitted video conferences to allow the defendant to observe,
and be observed by, witnesses who were being deposed in Riyadh, Saudi Arabia.
[United States v. Abu Ali, 528 F.3d 210, 239-240 (4th Cir. 2008)(quoting
Maryland v. Craig, 497 U.S. 836, 850 (1990)). In this case the defendant, while
located in the Federal courthouse in Alexandria, Va., was able to communicate
with his counsel in Riyadh via telephone during breaks in the deposition or
upon the request of defense counsel] The Fourth Circuit stated that these
procedures satisfied the Confrontation Clause if “the denial of ‘face-to-face
confrontation’ [was] ‘necessary to further an important public policy,’” and
sufficient procedural protections were in place to assure the reliability of
the testimony. [Id. at 241-242 (citing Maryland v. Craig, 497 U.S. 836 (1990),
in which one-way video testimony procedures were used in a prosecution for
alleged child abuse)] Here, the Fourth Circuit cited the protection of national
security as satisfying the “important public policy” requirement. The cited
procedural safeguards were the ability of the defendant and witness to mutually
observe the other, the fact that testimony was given under oath in the Saudi
criminal justice system, and the ability of defense counsel to cross examine
the witnesses. [Id. See, also, United States v. Bell, 464 F.2d 667 (2nd Cir.
1972) (holding that exclusion of the public and the defendant from proceedings
in which testimony regarding a “hijacker profile” was presented was consistent
with the Confrontation Clause)] Arguments alleging that protective orders
violate the Confrontation Clause because they do not allow the participation of
the defendant may also be undercut in the classified information context
because, in some cases, the excluded defendant is not believed to have
knowledge of the information being presented. Therefore, his ability to provide
his counsel with rebuttal information for cross examination purposes may be
reduced. CIPA does not have any provisions which authorize the exclusion of
defendants from any portion of trial based upon national security
considerations. But, CIPA § 3 may authorize courts to issue protective orders
preventing disclosure of classified information to the defendant by defense
counsel.[ See Brian Z. Tamanaha, A Critical Review of The Classified
Information Procedures Act, 13 AM. J. CRIM. L. 277, 290, n.64, n.65 (1986).]”).

[14] United States v.
Marzook, 412 F. Supp. 2d 913, 923-924 (ND IL 2006) (“Allowing the ISA agents to
testify using pseudonyms does not deprive Defendant of his Sixth Amendment
right to confront these witnesses. The Sixth Amendment's Confrontation Clause
guarantees a criminal defendant the right "to be confronted with the
witnesses against him." United States v. McGee, 408 F.3d 966, 974 (7th
Cir. 2005), quoting U.S. CONST., amend. VI. "The clause protects the
criminal defendant's right physically to face those who testify against him,
and the right to conduct cross-examination." Id. (quotation and citation
omitted). Defendant will be able to physically face each of the ISA witnesses
and to cross examine them. Although he will not know their true identities,
they will identify themselves by their pseudonyms that they use in connection
with their work. Defendant has admitted that he never knew these individuals by
their true identities, but only by the pseudonyms that they will use in court.
(R. 406, p. 41.) Defendant remains free to cross examine these witnesses on the
basis of their direct testimony or any other proper basis. See Delaware v. Van
Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986)
(courts can "impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the
issues, the witness' safety, or interrogation that is repetitive or only
marginally relevant."). The use of pseudonyms is also appropriate for the
security of these witnesses. See United States v. Watson, 599 F.2d 1149, 1157
(2d Cir. 1979) (finding no Confrontation Clause violation: "given the
seriousness of the threat and the extensiveness of the cross-examination that
the court did permit, we believe that the judge acted within his discretion in
limiting the scope of cross-examination so as to permit [witness who was in the
Federal Witness Protection Program] to maintain his concealed identity");
United States v. Abu Ali, 395 F.Supp.2d 338, 344 (E.D. Va. 2005) (on motion to
suppress, court considered testimony from witnesses who, for security reasons,
used pseudonyms).").

[15] United States v.
Marzook, 412 F. Supp. 2d 913, 927-928 (ND IL 2006) (“The government seeks
permission to have the ISA agents testify in light disguise for ‘the protection
of their identity, both for their ability to continue covert work as well as
their safety and the safety of their families.’ (R. 367-1, p. 21.) Defendant
opposes this measure. The appearance of these agents presents legitimate
security issues. See id. Although light disguise would be appropriate in some
circumstances, see, e.g., United States v. Dumeisi, 2003 U.S. Dist. LEXIS
20960, No. 03 CR 664, R. 367-1, Ex. C), it is not necessary here where the
courtroom will be closed to the public. The government contends that Defendant
Salah and others in the courtroom will be able to publicly identify these
agents if they do not wear light disguise. These are the same agents that
previously questioned Defendant Salah. The government has not submitted any
evidence or argument that these agents were in disguise at the time of such
questioning, thus Salah presumably has already physically seen them at length.
The only other individuals in the courtroom will be defense attorneys, court
personnel who have security clearances, and federal agents. Without any
evidence of why the extra precaution of light disguise is necessary in a closed
courtroom, the Court denies the government's request without prejudice. The
Court orders that no one present in the courtroom can disclose or describe the
physical identity of these ISA agents.”).

[16] United States v.
Marzook, 412 F. Supp. 2d 913, 928 (ND IL 2006) ("The Court orders that no
one present in the courtroom can disclose or describe the physical identity of
these ISA agents.").

[18]U.S. Const. amend. XIV
(“All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the
laws.

Representatives shall be
apportioned among the several States according to their respective numbers,
counting the whole number of persons in each State, excluding Indians not
taxed. But when the right to vote at any election for the choice of electors
for President and Vice-President of the United States, Representatives in
Congress, the Executive and Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such State,
being twenty-one years of age, and citizens of the United States, or in any way
abridged, except for participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the proportion which the number of
such male citizens shall bear to the whole number of male citizens twenty-one
years of age in such State.

No person shall be a Senator
or Representative in Congress, or elector of President and Vice-President, or
hold any office, civil or military, under the United States, or under any
State, who, having previously taken an oath, as a member of Congress, or as an
officer of the United States, or as a member of any State legislature, or as an
executive or judicial officer of any State, to support the Constitution of the
United States, shall have engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies thereof. But Congress may by a
vote of two-thirds of each House, remove such disability.

The validity of the public
debt of the United States, authorized by law, including debts incurred for
payment of pensions and bounties for services in suppressing insurrection or
rebellion, shall not be questioned. But neither the United States nor any State
shall assume or pay any debt or obligation incurred in aid of insurrection or
rebellion against the United States, or any claim for the loss or emancipation
of any slave; but all such debts, obligations and claims shall be held illegal and
void.

The Congress shall have the power to enforce, by
appropriate legislation, the provisions of this article.”).

[19] While there is no Equal
Protection Clause in the Fifth Amendment to the U.S. Constitution, the Supreme
Court has held the Equal Protection Clause of the Fourteenth Amendment to be
reverse incorporated, via the Fifth Amendment’s Due Process Clause, to apply
equal protection requirements to the federal government. See Bolling v.
Sharpe, 347 U.S. 497 (1954); see also Adarand Constructors, Inc. v.
Pena, 515 U.S. 200 (1995). Claims regarding possible denial of equal protection
by local or state police would be assessed under the Fourteenth Amendment’s
Equal Protection Clause.

[20]U.S. Const. amend. I (“Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a redress of
grievances.”).

[21]U.S. Const. amend. IV (“The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.”).

[22]U.S. Const. amend. V (“No person shall be held to answer for
a capital, or otherwise infamous crime, unless on a presentment or indictment
of a grand jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public danger; nor shall any
person be subject for the same offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use, without just
compensation.”) (emphasis added).